Wronged by Rights:
Consumer Perils of 'Free Use'Legislation Could Upset Balanced Between Copyright and Commons

WASHINGTON, D.C. -The movement to expand the free use of such copyrighted digital material as games, DVDs, CDs and other software through legislation could harm the very people some advocates are trying to help. So says James V. DeLong, director of The Progress & Freedom Foundation’s Center for the Study of Digital Property in an article published by the Media Institute, “Fair Use: Less Can Be More.”

According to DeLong, copyright is appropriately limited by a number of exemptions; ‘fair use’ being one of the most important. It promotes ‘productive use’ by enabling authors to borrow material to create new works and avoids ‘transaction costs’ by allowing common sense replications of works when paying and obtaining consent is impractical. The latter exemption is particularly important in this context.

Such organizations as Digital Consumer and Public Knowledge want legislation creating the right to, among other things, break digital protection systems that limit the ability to reformat or shift content in time or among platforms. “This approach is a wrong use of fair use, and for Congress or courts to adopt it would be no favor to consumers,” writes DeLong. “Quite the reverse; it would harm them greatly.” Why? Because, without some form of protection, “creativity would suffocate over not-to-long-a-period because the only people who could afford to engage in it would be those with an external motive, such as advertising or ideology, those of independent means, or those who attract rich patrons.”

According to DeLong, the “march of technology” is “reducing transaction costs and making possible the creation of markets.” Those markets will feature “multiple options and varying prices” for varying degrees of use. He maintains legally mandated ‘rights’ would reduce options, forcing users of copyrighted digital material to “buy the whole thing rather than a time-limited license” and “saying, in effect, that video rentals should not be allowed.” DeLong says consumers are best served if ‘fair use’ is not hugely expanded: “Property rights, technology and markets, allowed to work their magic, will bring us a cornucopia of choices,” he concludes. “Legislation will freeze us into pre-Internet patterns.”

The Progress & Freedom Foundation is a market-oriented think tank that studies the impact of the digital revolution and its implications for public policy. The Foundation is a 501(c)(3) nonprofit organization founded in 1993.